2 Scope of Class A rights
12.64 Class A development rights only apply to development on agricultural land comprised in an agricultural unit of 5 hectares or more. Note that the agricultural unit must be of a minimum of 5 hectares for Class A rights to accrue; this is the reference point for the application of Class A, and not the agricultural land on which development is to be carried out.
The two may not be synonymous. Class D.1 defines the agricultural ‘unit’ for these purposes in broad terms to mean agricultural land that is occupied as a unit for the purposes of agriculture, and can include a dwelling(s) and/or agricultural buildings.12.65 If the unit concerned is of less than 5 hectares Class A rights are not applicable: the development will be subject to the separate terms and conditions contained in Class B (below). The two classes are mutually exclusive.
12.66 For Class A rights to apply, proposed operations must be carried out on ‘agricultural land’ comprised in an ‘agricultural unit’, and must furthermore be reasonably necessary for the purposes of ‘agriculture’ within the unit. Development is not permitted, moreover, if it would be carried out on agricultural land less than one hectare in area. If these conditions are met, a further limitation may apply; the Class A rights will only apply if the works themselves can be characterised as wither ‘works for the erection, extension or alteration of a building’ or ‘excavation or mining operations’. Note, also, that Part 6 rights must be assessed by reference to the agricultural unit within which the land is situate. This is not to be confused with the planning unit (a judicial creation), which latter is of importance in deciding whether a ‘material change of use’ has occurred. This is discussed above at para 12.34 ff in relation to the requirements for planning permission.
12.67 If Class A rights are applicable, their exercise will be subject to conditions specified in the General Development Order.
Before these can be considered, however, the definition of the basic concepts used in Class A must be considered.(a) Agricultural land
12.68 This is defined by Sch 2, Part 6, Class D.1 to mean ‘land which before development permitted by this part is carried out, is land in use for agriculture and which is so used for the purposes of a trade or business, and excludes any dwelling house or garden’. For land to qualify as agricultural land the following elements must therefore be present.
Use for agriculture
12.69 ‘Agriculture’ is defined by s 336(1) of the 1990 Act, and has already been considered.116 The Act defines agriculture thus:
Agriculture includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes.
12.70 This definition supersedes that contained in s 109 of the Agriculture Act 1947, and used in previous General Development Orders.117 Provided land is demonstrably ‘used’ for agricultural purposes, there need be no comparable relationship between the agricultural potential of the land and any engineering operations carried on, and to which it is claimed Part 6 rights apply.118
Use for purposes of a trade or business
12.71 This restriction does not apply to agricultural user rights under s 55(2) (e). Development rights under Part 6, however, do not apply if the agricultural use is recreational, eg if buildings are to be erected for stabling ponies grazed on the land and kept for recreational purposes. ‘Trade or business’ is not defined; semble, however, it has a wide meaning, and would include any occupation by which one earns a living, as opposed to an activity for pleasure and social enjoyment.119 An activity can be a ‘business’ for these purposes, moreover, without the necessity of being run on commercial lines, provided it involves the carrying on of a serious occupation.120 In Town Investments Ltd v Dept. of the Environment,121 for example, ‘business’ was defined widely to encompass any ‘serious occupation, not necessarily confined to commercial or profit making undertakings’.
(b) Exclusion of dwelling houses
12.72 In Tyack v Secretary of State for the Environment,122 the House of Lords cast doubt on the earlier decision in Blackmore v Butler,123 where it was held that a dwelling house and garden could be used for agricultural purposes, it being a matter of fact and degree in each case whether the primary user was agriculture or residential. Tyack was a case under the 1977 General Development Order. The 2015 Order speficially provides that a dwelling house is to be excluded from the definition of agricultural land.124 Part 6 rights do not apply, therefore, to allow development in the garden of a farm cottage or farmhouse.
(c) Agricultural unit
12.73 This is defined by Class D.1 to mean agricultural land which is occupied as a unit for the purposes of agriculture, and specifically includes any dwelling or building on the land occupied for the purpose of farming the land by the person who occupies the unit, or any dwelling on the land occupied by a farm worker. The ‘unit’, thus described, may include several parcels of land, eg scattered fields. Whether development rights under Part 6 accrue will depend on whether works are reasonably necessary for the purposes of agriculture within the agricultural unit in this broad sense. Conversely, development is not permitted under Part 6 where agricultural land is included in a larger unit that is not agricultural in use, eg a field in a larger industrial complex. The intent is to limit Part 6 development rights to operations on land comprised in a working farm and to exclude agricultural land farmed ancillary to some larger non-agricultural enterprise.
(d) Minimum area of land
12.74 Development is not permitted if it would be carried out on agricultural land less than one hectare in area (Class A.1(a)). The intent is to prevent intensive development on small parcels of land. The permission granted by Class A is now, therefore, for development on land over 1 hectare on an agricultural unit of 5 hectares or more.
The position where the unit is smaller (ie between 0.4 and 5 hectares) is dealt with separately by Class B. The minimum area for development under Class A.1 is not to be confused with the area comprised in the agricultural unit (above). For the purposes of Class A.1 the area of one hectare is to be calculated without taking into account any dwelling house or garden (Class D.1), and without aggregating separate parcels of land in the same agricultural unit. Where an agricultural unit comprises several parcels of land, the individual parcel on which development is proposed must exceed one hectare in area. The area of the land concerned at the time the development is commenced is the relevant criteria for applying the rule.125 But whether the development is reasonably necessary for the purposes of agriculture within the unit is decided by looking at the agricultural unit as a whole, ie the several parcels of land which together make up the farm. Thus silage facilities, livestock housing or silos could be erected on one portion of the unit (minimum one hectare in extent) although the facilities will benefit agricultural activities carried on, for the most part, on other parcels of land included in the farm. The rule preventing aggregation of individual parcels of land was introduced for the first time in the 1988 Order and confirms the decision in Tyack v Secretary of State for the Environment.126 The wording of the current GDO is different, but would appear to reconfirm this requirement. The omission of dwellings and gardens (Class D.1) also confirms the ruling in Tyack where it was held, by the House of Lords, that a house and curtilage, and neighbouring but physically separate land farmed by the occupier, were not part of a single agricultural unit. Neither could the house and curtilage be considered ‘agricultural land’ for the purpose of the GDO.